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In evaluating the best interests of the child for purposes of determining issues of custody and parenting time, the court must consider whether domestic abuse, as defined in section 518B.01, has occurred in the parents’ or either parent’s household or relationship, the nature and context of the domestic abuse, and the implications of the domestic abuse for parenting and for the child’s safety, well-being, and developmental needs.
The court shall use a rebuttable presumption that joint legal custody or joint physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents.
What counts as domestic abuse under Minnesota law
Under the Domestic Abuse Act, domestic abuse means physical harm, bodily injury, or assault; the infliction of fear of imminent physical harm, bodily injury, or assault; or terroristic threats, criminal sexual conduct, sexual extortion, or interference with an emergency call, if committed against a family or household member by a family or household member.
Family or household members under section 518B.01 include spouses and former spouses; parents and children; persons related by blood; persons who are presently residing together or who have resided together in the past; persons who have a child in common regardless of whether they have been married or have lived together at any time; and persons involved in a significant romantic or sexual relationship.
Source: Minn. Stat. § 518B.01
How domestic abuse affects the best-interests analysis
The court shall not consider conduct of a party that does not affect the party’s relationship with the child.
The court shall consider evidence of a violation of section 609.507 in determining the best interests of the child.
Convictions that shift the burden of proof
Section 518.179 applies to convictions including murder in the first, second, or third degree; manslaughter in the first degree; assault in the first, second, or third degree; kidnapping; criminal sexual conduct in the first or second degree; malicious punishment of a child; neglect of a child; terroristic threats; felony harassment under section 609.749, subdivision 4; and domestic assault by strangulation under section 609.2247.
If a person seeking child custody or parenting time has been convicted of a crime described in section 518.179, subdivision 2, the person seeking custody or parenting time has the burden to prove that custody or parenting time by that person is in the best interests of the child if the conviction occurred within the preceding five years, the person is currently incarcerated, on probation, or under supervised release for the offense, or the victim of the crime was a family or household member as defined in section 518B.01, subdivision 2.
Source: Minn. Stat. § 518.179
When a conviction occurs after custody is already in place
If a person who has court-ordered custody of a child or parenting time rights is convicted of a crime listed in section 631.52, subdivision 2, and if no action is pending regarding custody or parenting time, the sentencing court shall refer the matter to the appropriate family court for action under this section.
Upon referral under section 631.52, the family court shall grant temporary custody to the noncustodial parent, unless it finds that another custody arrangement is in the best interests of the child, or suspend parenting time rights, unless it finds that parenting time with the convicted person is in the best interests of the child.
Under section 631.52, the defendant has the burden of proving that continued custody or parenting time with the defendant is in the best interests of the child, and if the victim of the crime was a family or household member as defined in section 518B.01, subdivision 2, the standard of proof is clear and convincing evidence.
A guardian ad litem must be appointed in any case to which section 631.52 applies.
Section 631.52 also applies to persons convicted before July 1, 1990, if the defendant is currently incarcerated, on probation, or under supervised release for the offense, or if the victim of the crime was a family or household member as defined in section 518B.01, subdivision 2.
Temporary custody and parenting time under an order for protection
Upon notice and hearing, a court may award temporary custody or establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children, and if the court finds that the safety of the victim or the children will be jeopardized by unsupervised or unrestricted parenting time, the court shall condition or restrict parenting time as to time, place, duration, or supervision, or deny parenting time entirely, as needed to guard the safety of the victim and the children.
An order for protection shall prohibit the abusing party from possessing firearms for the length the order is in effect if the order restrains the abusing party from harassing, stalking, or threatening the petitioner or restrains the abusing party from engaging in other conduct that would place the petitioner in reasonable fear of bodily injury, and includes a finding that the abusing party represents a credible threat to the physical safety of the petitioner or prohibits the abusing party from using, attempting to use, or threatening to use physical force against the petitioner.
Source: Minn. Stat. § 518B.01
Questions people ask about domestic abuse and divorce in Minnesota
What is the standard of proof when the victim was a family or household member?
The court may not grant custody or parenting time to the person unless it finds that the custody or parenting time is in the best interests of the child, and if the victim of the crime was a family or household member, the standard of proof is clear and convincing evidence.
Must the court appoint a guardian ad litem when section 518.179 applies?
A guardian ad litem must be appointed in any case where section 518.179 applies.
Can the court require mediation when one parent abused the other?
If the court determines that there is probable cause that one of the parties, or a child of a party, has been physically or sexually abused by the other party, the court shall not require or refer the parties to mediation or any other process that requires parties to meet and confer without counsel, if any, present.
Can the court create a parenting plan on its own motion when domestic abuse is found?
The court must not create a parenting plan on its own motion if it finds that a parent has committed domestic abuse against a parent or child who is a party to, or subject of, the matter before the court.
Can a court impose a joint-custody parenting plan when domestic abuse has occurred?
The court may not require a parenting plan that provides for joint legal custody or use of dispute resolution processes other than the judicial process if the court finds that section 518.179 applies or the court finds that either parent has engaged in acts of domestic abuse, physical or sexual or a pattern of emotional abuse of a child, or willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions.
Can the court order attorney fees in a Minnesota divorce proceeding?
In a proceeding under chapter 518 or chapter 518A, the court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds that the fees are necessary for the good faith assertion of the party’s rights, that the party from whom fees are sought has the means to pay them, and that the party to whom fees are awarded does not have the means to pay them.
Can a party be ordered to pay fees for dragging out the case?
The court may also award additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding or whose unreasonable failure to comply with an order or decree causes the other party to seek enforcement or other relief.
Talk with Martine Law about your Minnesota divorce case
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